In the realm of “good news/bad news,” twin boys born to a gay Italian couple via in vitro fertilization and surrogacy in California will be recognized as Italian citizens, an Italian court ruled last month. But Italy will not recognize the boys as brothers—even though they have the same genetic mother.

As The Washington Post reports, Italy has some of the most restrictive reproductive laws in Europe. Surrogacy is illegal, as are egg and sperm donation. Only heterosexual couples who are married or in “stable relationships” can legally conceive via IVF, and they must use their own eggs and sperm. Same-sex marriage is illegal, although a recently enacted law allows same-sex couples to register civil partnerships. Gay and lesbians are not allowed to adopt, not even their partners’ children.

Following their twin boys’ birth, the family returned to Italy, where the registry office in Milan refused to accept the boys’ birth certificates. The fathers sued to be recognized as the boys’ legal parents. Initially the court rejected their claim. On appeal a new court allowed them to register their sons—but not as parents of both boys.

As The Washington Post reports, “Because the men used separate semen samples to fertilize the eggs, the court said that each of them can now register his biological son as his own. But the babies cannot be recognized as children of the couple, nor are they to be considered brothers, even though they share the same genetic mother, who donated both eggs.”

Despite the bizarre scenario of twins who are not brothers under the law, LGBT and reproductive rights activists see the ruling as a step in the right direction: “It's the first time that an Italian court has established that a child's best interest comes before [the legality of] how he or she was born,” Marilena Grassadonia, president of the advocacy group Famiglie Arcobaleno told The Washington Post.

The European Court of Human Rights has issued a number of rulings in the past few years upholding the rights of parents of children born via assisted reproductive technology, and national courts in many parts of Europe have followed the same trend.

As we reported, a 2015 ECHR ruling on a French case that applied to all 47 Council of Europe member held that “France, where surrogacy is illegal, could not deny citizenship to children of French intended parents born via surrogacy in other countries.

Our report continues: “Less than a month later, a Spanish court ordered authorities in that country to grant citizenship to the children of Spanish intended parents who had children born to surrogates in other countries, including in the case of a gay Spanish couple who had a child via surrogacy in San Diego. In December, the German Supreme Court ruled that authorities must recognize children born abroad via surrogacy as the legal offspring of their German intended parents, although some questions remain about the scope of the decision."

A year ago we also wrote about an ECHR ruling imposing steep fines and legal fees on Italian authorities who removed a child born via a Russian surrogate from his parents’ home, saying the Italian state had violated the couple’s rights under the European Convention on Human Rights. In January, the ECHR overturned its earlier decision, ruling that the couple's rights had not been violated.

In matters so deeply intimate and personal as parentage and reproduction, laws and public policy often lag changes in societal norms and public opinion. In the case of assisted reproduction, the technology is advancing by leaps and bounds, continually challenging lawmakers and regulators to adapt. As technology makes the impossible possible for people who dream of biologically related children, the pressure on government institutions will continue to grow to, if not change their own laws, to at least honor the laws of nations where ART is safe, regulated and legal.

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Richard Vaughn

rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

ABOUT IFLG

As a law firm practicing exclusively in fertility law, we are committed to providing you and your family with the highest caliber legal support in all aspects of assisted reproductive technology law, including surrogacy, egg donation, embryo donation, sperm donation, parental rights, non-traditional family formation and second-parent adoption.

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.